Estates, Personal Representatives, and Wrongful Death Claims

By Mitchell Theodore | May 24th, 2017

DO YOU NEED AN ESTATE TO PURSUE YOUR CLAIM?

In many states, including Alabama, in order to bring a wrongful death claim on behalf of a deceased loved one, you must first be appointed the personal representative of the estate of the deceased person by the local probate court. If a wrongful death lawsuit is filed by a person who is not the personal representative of the estate, the case could be dismissed for failure to bring the claim to the proper party. Individual state laws vary on which heirs and family members of the deceased will be paid compensation from a wrongful death lawsuit and settlement, and what percentage of the compensation will be paid to each heir and family member. For example, in some states, the money recovered will be distributed according to the will, and in other states, like Alabama, it will be distributed according to Alabama intestate laws, without reference to a will.

WHO SHOULD BE PERSONAL REPRESENTATIVE?

Many times a person will appoint a personal representative in his or her Last Will and Testament. In that case, in order to bring a valid wrongful death claim, the appointed person simply needs to formally be named personal representative by the probate court.

In other cases, where a person dies intestate (without a will) or the will fails to name a personal representative, the role of the personal representative is filled by the next of kin. Each state has different laws regarding who can serve as personal representative under these circumstances. Typically, a surviving spouse has priority to serve as the personal representative of the estate. The decedent’s children, parents, and siblings also may be appointed to head the estate.

WHAT IS A PERSONAL REPRESENTATIVE’S ROLE?

In essence, the personal representative stands in the place of the deceased individual when pursuing a wrongful death claim. The personal representative’s role includes, among other duties, managing the assets of the deceased individual, coordinating with the attorney handling the lawsuit, and ensuring that proceeds from any settlement or judgment are properly disbursed.

Clearly, the role of the personal representative is an important one. You should consider who would best handle this responsibility for you and clearly appoint that individual in your will as personal representative.

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Alabama Rules of Professional Conduct require the following disclaimer: Case descriptions, recoveries and testimonials presented here are not an indication of future results. Every case is different and must be evaluated on its own facts and circumstances as they apply to the law. Litigation outcome and valuation depend on many factors including jurisdiction, venue, witnesses, parties, testimony and documentary evidence. Furthermore, no representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.